Judicial Response to Coup D'Etat: A Reply to Tayyab Mahmud (From a Nigerian Perspective) [Article]

Item Type Article; text

Authors Ekpu, Ambrose O. O.

Citation 13 Ariz. J. Int'l & Comp. L. 1 (1996)

Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ)

Journal Arizona Journal of International and Comparative Law

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Link to Item http://hdl.handle.net/10150/659364 JUDICIAL RESPONSE TO COUP D'ETAT: A REPLY TO TAYYAB MAHMUD (FROM A NIGERIAN PERSPECTIVE)

Ambrose 0. 0. Ekpu*

I. INTRODUCTION

Unconstitutional usurpation of political power in a state presents a dilemma to serving judges when they are called upon to react to the political change. The dilemma arises because such usurpation usually displaces the pre-existing constitutional order, which is the primary source of authority for judges. The reactions of the judiciaries in the various countries that have gone through unconstitutional political change, and sometimes even of the judges in the same country, have been far from consistent. Inconsistent as well have been the views of various jurists and other commentators. Such differences are perhaps natural and should be expected because reaction to an unconstitutional change of government is not completely devoid of the personal prejudices and values of the persons viewing it, whether they are directly affected by the unconstitutional change or just observing from a distance. In a recent article,' Professor Tayyab Mahmud has very ably analyzed the reactions of judges to cases of unconstitutional usurpation of political power in ten countries and a colony. The analysis confirms the divergence of opinion among judges in their reactions to coups d'etat and other forms of abrupt and unconstitutional changes to the pre-existing legal order. In the end, he opines that there are four clear options open to judges when a government or a legal order has been overthrown, namely: validation/legitimation of the usurpation; strict constitutionalism, that is, judging the change according to the pre-existing constitutional order; resignation of office; or judicial abdication, that is, declining to assume jurisdiction on the ground that the issue is a nonjusticiable political question. After a thorough examination of each of these options, Mahmud

* LL.B. (Hons.) (1985), LL.M. (1989), Bendel State University, Nigeria, Fulbright Scholar at the College of Law, University of Tulsa. Senior Lecturer in Law, Edo State University (Nigeria). I wish to thank-but without implicating-Professor Rex Zedalis of the College of Law, University of Tulsa for his very helpful comments on an earlier draft of this article. Brent Hendricks, Research Fellow, National Energy- Environmental Law and Policy Institute, College of Law, University of Tulsa, also provided valuable assistance. 1. Tayyab Mahmud, Jurisprudenceof Successfid Treason: Coup d'Etat and Common Law, 27 CORNELL INT. L.J. 49 (1994). 2 Arizona Journal of Internationaland Comparative Law [Vol. 13, No. I

strongly recommends judicial abdication as the "only feasible option" dictated by 2 realism and prudence. In this short reply, mainly from a Nigerian perspective, this Article contends that there are only two options open to a judge when confronted with a coup d'etat: either accommodating. herself to the facts, which entails accepting the changes, or refusing to accommodate herself to the changes. Each of the options has its own consequences for the judge. The first option will almost inevitably diminish her stature while the second option will normally lead to her resignation or dismissal.3 It will be shown that the 'option' of judicial abdication as recommended by Professor Mahmud practically equates to the first option of accommodation to the changes and, further, that judicial abdication might not be appropriate in all situations. Though this Article contends that the choice between the two options presents an ethical dilemma-the resolution of which should in large part depend upon the conscience of the particular judge-it is proposed that the option of refusing to accommodate the changes might be the preferable and more appropriate choice in the interest of political stability and the enhancement of democratic culture. In light of the Nigerian experience, this Article considers some of the consequences for the judiciary which usually arise from decisions by judges to remain in office after a coup d'etat. The consequences, which include curtailment of the jurisdiction of the courts, disobedience of court orders by usurper regimes, abrogation of constitutional guarantees of human rights, and insecurity of tenure, constitute serious constraints on the effective functioning of the judiciary and would for any worthy and self-respecting judge continually call into question the wisdom of the initial decision to remain in office.

II. THE REAL OPTIONS AVAILABLE TO A JUDGE AFTER A COUP D'ETAT

When a government established under a constitution is overthrown in a coup d'etat, the judiciary, if it survives the change, must often determine the status of the usurper regime. This section examines the possible options open to a judge when called upon to address this question. Before examining the options, it should be pointed out that this inquiry is restricted only to cases of coups d'etat as distinct from other possible cases of extra-constitutional changes of political and constitutional order. For this purpose, this paper accepts the distinction made by

2. Id. at 139. 3. See S.A. de Smith, Constitutional Lawyers in Revolutionary Situations, 7 W. ONTARIO L. REv. 93, 110 (1968). 19961 Judicial Response to Coup d'etat

Professor Mahmud between coups d'etat and revolutions. 4 Accordingly, this paper only examines situations in which a group of people from within an existing and established state capture or seek to capture political power unconstitutionally.

Typically, [o]nly that part of the Constitution which bears on the formation of political organs of the state is subverted. The functional framework of the State, the judicial branch, and the wider legal order are typically kept in place. As a result, the legitimacy of the new regime is not completely autonomous of the pre-existing processes and 5 institutions.

On the other hand, a revolution "envisages a complete metamorphosis that affects both civil society and the entire state; the transformation is so pervasive that legitimacy of the new order is completely autonomous of the processes and institutions of the old order." 6 It is important that we keep this distinction in mind for, as will be shown later, the distinction appears to have been lost in 7 Mahmud's concluding analysis.

A. The True Options

Realistically, every serving judge confronted with a coup d'etat has the following two options to choose from: (a) accommodate herself to the changes brought about by the coup d'etat and thereby become part of the usurper regime; or (b) refuse to accommodate the overthrow of a government and the constitutional order. In other words, the judge refuses to accept the authority of 8 the usurper regime. There are no other practical options, for whatever other course of action that might be suggested will ultimately boil down to either accepting or repudiating the unconstitutional usurpation of political power. The critical consideration should be the consequence of adapting either course of action and these two

4. Mahmud, supra note 1, at 102-03. 5. Mahmud, supra note 1, at 103. 6. Mahmud, supra note 1, at 102. See also United States v. Foster, 9 F.R.D. 367, 394 (1949), for a definition and implications of a revolution. 7. See infra notes 41-44 and accompanying text. 8. J.M. Eekelaar, Principles of Revolutionary Legality, in OXFORD ESSAYS IN JURISPRUDENCE 23, 32 (A.W.B. Simpson ed., 1973). 4 Arizona Journalof Internationaland ComparativeLaw [Vol 13, No. I

options seem to cover every other conceivable response. Accordingly, Professor Mahmud's four options could conveniently be collapsed into these two options. For instance, there is hardly any discernible distinction between judicial abdication-the choice of declining to make a pronouncement on the validity and legitimacy of the usurper regime on the ground that it is a political question-and the validation/legitimation option. Whatever difference there is, if any, must exist only in the realm of legal theory. For all practical purposes, both choices carry the same consequences and amount to exercising the first of the two options identified above. Ajudge who remains in office after a coup d'etat and declines to pronounce on the validity/legitimacy of the usurper regime, but who administers and gives effect to the laws promulgated by the regime, can only be taken to have accepted or recognized the right of the regime to govern. It is doubtful that any reasonable inference of such a judge's conduct can be drawn other than her conduct equates to an unequivocal acceptance of the legality or authority of the new regime. As the Rhodesian Appeal Court stated in Regina v. Ndhlovu,9 when judges continue to sit "after they had found as a fact that as a result of successful revolutions the old constitutions had been effectively overthrown and replaced by new constitutions, they, by continuing to sit, accepted the new constitutions." Thus, while the judge who decides on whatever principle that a usurper regime is valid and legitimate may be taken to have expressly accepted the right of the regime to govern, the judge who chooses to withhold her pronouncement on the validity/legitimacy of the regime but who nonetheless applies the enactments of the regime has no less accepted, even though implicitly, the right of that regime to govern. An attempt to draw a distinction between the actions of the two judges is only an exercise in formalism; it only looks to the manner of the choice while ignoring the critical parameter which is the result of the choice. Similarly, the option of "strict constitutionalism," which entails judging the usurpation according to the pre-existing constitution under which the court was appointed, and the option of resigning the office both give the same message: a repudiation of the usurper regime. An unyielding adherence by a judge to the pre- existing constitutional order in the face of an established and effective usurper regime is likely to lead to her dismissal or resignation of office.' 0 These ae usually the painful consequences of a judge's refusal to accommodate the coup d'etat.

9. Regina v. Ndhlovu, 4 S. Afr. L. R. 515, 522 (Rhodesian App. Div. 1968). See also Luther v. Borden, 48 U.S. 1, 39 (1849) (the U.S. Supreme Court stated that the acceptance of the judicial office is a recognition of the authority of the government from which it is derived.). 10. See Mahmud, supra note 1, at 125; de Smith, supra note 3. 1996] JudicialResponse to Coup d'etat

Having identified the options available to a judge confronted with a successful coup as either accepting or refusing to accept the usurpation, an assessment of both options is in order. But before that, it is appropriate to consider first the more specific "option" of judicial abdication favored by Professor Mahmud.

B. Judicial Abdication and the Political Question Doctrine

Judicial abdication requires the judge to decline jurisdiction any time the issue before the court turns on the validity or legitimacy of the usurper regime. The basic premise is that such issue is a "political question" and, therefore, not subject to adjudication in a court of law.'1 The political question doctrine, generally attributed to Justice Marshall's pronouncement in Marbury v. Madison,12 has been interpreted to mean that a court's power of judicial review is ousted in cases where the issues involved are "political in nature" or have been clearly assigned by the constitution to the other branches of government. Professor Mahmud argues very pointedly that the validity and legitimacy of a coup d'etat is one of such issues that the courts should decline to determine relying on the political question doctrine. 13 His reasons, as understood, can be 14 summarized as follows. First, he argues that the strangeness of the issue and the absence of doctrinal consistency in the decisions that validated coups d'etats warrant judicial abstention in order not to add to the doctrinal maze. He suggests that it is "clearly desirable to keep the courts out of the main area of dispute, so that, whatever be the

11. Mahmud, supra note 1, at 131-38. 12. Marbury v. Madison, 5 U.S. 137, 170 (1803). See also Baker v. Carr, 369 U.S. 186 (1962); ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 111-98 (1962); J. Peter Mulhem, In Defense of the Political Question Doctrine, 137 U. PA. L. REV. 97 (1988). 13. For similar views, see Akinnola Aguda, The Judge in Developing Countries, Nigerian Institute of Advanced Legal Studies Occasional Paper 23 (1980); Abiola Ojo, CONSITUTIONAL LAw AND MILITARY RULE IN NIGERIA 253 (1987) (stating that "a successful revolution begets its own legality"). But these writers do not appear to have recognized any distinction between coups d'etat and revolutions, taking for granted that every military government is a revolutionary government. 14. Mahmud, supra note 1, at 133-39. 6 Arizona Journal of Intenzational and Comparative Law [ Vol. 13, No. I

political battle .... the courts can carry on their peaceful tasks of protecting the 5 fabric of society and maintaining law and order."' The second reason is the problem of ascertaining facts "which is compounded 1 6 by the lack of judicially discoverable and manageable standards."' Put differently, the argument goes thus: since it is difficult to obtain independent and reliable assessment on the efficacy of the usurpation, the courts should decline to make a pronouncement rather than rely on their own "personal preferences and value choices" in the guise of judicial notice. Third, he identifies the problem of the "sheer enormity and momentousness of the issue which may tend to unbalance judicial judgment."'17 Coups d'etat are typically highly charged and volatile socio-political events and such contexts are 8 "ill-suited for considered and coolheaded judicial inquiry and pronouncements."' Fourth, the potential embarrassment for the courts, should the usurpers decide to disregard any adverse pronouncement, warrants abstention. Since the usurpers have the monopoly of force, they could choose either to ignore any adverse pronouncements from the courts or rebuke or even disband the courts. 19 The courts should therefore save themselves the ridicule and loss of respect that are almost surely to result from such actions by refusing to pronounce on the validity/legitimacy of the coup d'etat in the first place. Finally, and perhaps most importantly, Professor Mahmud concludes that legitimacy and validity (a distinction is drawn between the two concepts) of a successful coup d'etat deal respectively with the right to rule, and the corresponding obligation of the ruled to obey, and the legality of a norm when judged according to a higher norm. Both issues cannot be adjudicated because legitimacy involves political/moral issues and, secondly, because "a successful coup d'etat, by definition, destroys the constitutional order," that is, the higher norm. That, therefore, transforms the issue of validity of a successful coup from a pure legal question to a "meta-legal" question residing in the province of legal thought and not in judicial practice. 20 Moreover, Mahmud submits that courts,

15. Mahmud, supra note 1, at 133-34 (quoting Lord Reid in Madzimbamuto v. Lardner-Burke (1968) 3 All Eng. R. 561, 582 (P.C.)). 16. Mahmud, supra note 1, at 134. 17. Mahmud, supra note 1, at 134. 18. Mahmud, supra note 1, at 134. 19. Mahmud cites Nigeria's case of Lakanmi v. Attorney-General (Western State) (1971) 1 Uni. Ife L.R. 201 where the government by decree set aside the judgment of the Supreme Court refusing to confer the status of a de jure government on the military regime. See infra notes 69-71 and accompanying text. 20. Mahmud, supra note 1, at 138. 19961 Judicial Response to Coup d'etat

as agents of the state and the legal order, do not have the authority to determine 2 1 the legitimacy of the state or legal order under whom they serve. As impressive and compelling as these arguments may seem, judicial abstention is not an appropriate response to a coup d'etat. More generally, serious doubts have been cast on the very existence of a "political question" doctrine mandating judicial abdication on ground of nonjusticiability. 22 In almost all of the cases frequently cited as authorities for the doctrine,23 one is really not able to say that the courts actually abstained from deciding the issues before them. When the courts hold that there are no discoverable limits on the authority of the branch that took the action being challenged or, in other words, that there is no law to apply, they are simply saying that branch has unfettered discretion in the matter. That is an act of constitutional interpretation and does not amount to abdication. For instance, in Luther v. Borden,24 in which the U.S. Supreme Court was presented with a dispute over which of two rival factions was the lawful government of Rhode Island, the court did not abstain from determining the issue. Rather, it approved of the actions of the President and Congress in recognizing the old charter government as the lawful government on the ground 25 that those branches had acted within the scope of their constitutional authority. As Professor McCormack put it: 'There is no more clear application of law by the Court than to decide that what the political branches have done is within the 26 scope of their discretion."

21. Mahmud, supra note 1, at 135. 22. See, e.g., Louis Henkin, Is There a "Political Question" Doctrine?, 85 YALE L.J. 597 (1976); Wayne McCormack, The JusticiabilityMyth and the Concept of Law, 14 HASTINGS CONsT. L. Q. 595, 614, 633 (1987). Some commentators take the view that the doctrine exists but say that it is not useful. See, e.g., Martin H. Redish, Judicial Review and the "Political Question", 79 Nw. U. L. REv. 1031 (1985). The doctrine, if it ever existed, has surely been thoroughly discredited despite some recent efforts to rehabilitate it. For example, see Mulhern, supra note 12; BICKEL, supra note 12. 23. For some of these cases and the analysis, see McCormack, supra note 22, at 614. 24. Luther v. Borden, 48 U.S. I. Mahmud relied heavily upon this case and seems t9o have found it to be particularly relevant. Mahmud, supra note 1, at 131. 25. Professor McCormack summed up the result thus: "The problem with Luther is that the Court in fact did not stay out of the dispute. In reality, it decided that the old charter government was the lawful government of Rhode Island. It did so by accepting the decision of the 'political' branches on the matter." McCormack, supra note 22, at 616. For similar conclusion, see Henkin, supra note 22, at 608. 26. McCormack, supra note 22, at 614. 8 Arizona Journalof Internationaland Comparative Law [Vol. 13, No. I

Moreover, it is by far less certain if the political question doctrine exists as part of the lav in other common law jurisdictions for whom Professor Mahmud recommends its adoption in their response to coups d'etat.27 It is, therefore, hardly surprising that none of the several cases he reviewed relied on that doctrine. Granting that the political question doctrine exists and despite the uncertainty over its actual scope,28 it is doubtful if the doctrine can justifiably be amplified to cover questions of legitimacy and validity of a coup d'etat. In its original sense, the doctrine covers cases in which the political branches have exercised their discretion on matters unequivocally assigned to them by the constitution. 29 The doctrine claims that the issue is for one of the political branches, not the judiciary, to decide. But since a coup d'etat typically sweeps away the executive and legislative branches, the question arises as to which political branch is left to decide the issue of the status of the usurper regime. Or is it the usurpers themselves who should decide the issue? In any case, the status of a usurper regime is not an issue committed by the constitution to any of the political

27. See Geoffrey Sawer, Political Questions, 15 U. TORONTO L. J. 49, 60-61 (observing that "no trace" of a political question doctrine could be found in the constitutional jurisprudence of the Commonwealth countries); W. Rod Dolmage, A Case for the "PoliticalQuestion" Doctrine?-Adlerv. Ontario, 16 DALHOusIE L.J. 471 (1993). 28. Dr. Lozada says the questions covered by the doctrine are "quite elusive" and seem "such stuff as dreams are made of." Salvador Maria Lozada, The Successful Appeal from Ballots to Bullets: The Herculean Hardships of Judicializing Politics in Latin America, 25 NYuJ. Int' 1L. & POL. 123, 135 (1992) (after WILLIAM SHAKESPEARE, THE TEMPEST, act 4, sc.l). See also Henkin, supra note 22, at 594 n.4 (stating that in a sense "there are political questions in virtually every case, whenever a court reads and applies the Constitution or an act of Congress"); Melbourne v. Commonwealth of Australia, 74 Commw. L.R. 31, 82 (1947) (Austl.), where Dixon, J. observed that a statement to the effect that an issue is political rather than judicial in character is "really meaningless... for nearly every consideration arising from the Constitution can be so described .... For similar views, see also Erwin Chemerisndky, Cases Under the Guarantee Clause Should be Justiciable, 65 U. COLO. L. REV. 849, 852-60 (1994); Louise Weinberg, Political Questions and the Guarantee Clause, 65 U. COLO. L. REV. 887 (1994). 29. This is what Professor Wechsler has come to refer to as the "classical" form of the political question doctrine and asserts that it is the only acceptable use of the doctrine. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 7-9 (1959). Justice Marshall himself tried to delimit the scope of the doctrine as follows: "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion." Marbury v. Madison, 5 U.S. 137, 170 (1803). 19961 Judicial Response to Coup d'etat

branches. 30 Perhaps on this score alone, the political question doctrine seems inappropriate in the context of coups d'etat. The doctrine is a mere theoretical expedient serving only as a means of escape for fearful judges unwilling to address challenges to unconstitutional usurpation of power. Now to the specifics of the reasons advanced by Professor Mahmud for judicial abdication as summarized above. Perhaps the first and third reasons could be taken together since they seem to overlap. It is argued by Mahmud that the issues of validity and legitimacy are too strange, enormous and momentous for a court to be effective in adjudicating them. Put differently, he urges the courts to abstain because the issue is volatile. A constitution normally prescribes a form of government for a state and mode of succession to the political offices of that state.3 1 Conformance of a government with the form and mode of succession mandated by the constitution is therefore a proper constitutional dispute. Such disputes may be rare but cannot truly be said to be strange to the courts; they should in fact be anticipated by any court established under a constitution. Further, to accept the argument that courts should abstain because the issue involved is a volatile and momentous political controversy is to assert that courts should use their authority only when it does not matter very much. For the court to abdicate and become timorous in the face of such monumental challenge will seriously weaken its moral force, even in the run-of-the-mill cases,32 for the court might then be perceived by the ordinary citizens as a lame institution. Such perception will undeniably do incalculable harm to the integrity of the judiciary. Professor Mahmud's argument that the volatile nature of coups d'etat makes the context "ill-suited for considered and coolheaded judicial inquiry and pronouncements"3 3 is, with all respect, a non-issue. Or is it being suggested that the decision itself to abdicate is not the result of a well-reasoned and coolheaded process? In any case, judicial response to a coup d'etat may not require a very elaborate inquiry; it is a decision whether to extend or withhold support to the usurpers. All the theoretical analysis usually accompanying such a decision is, at best, incidental or, at worst, an afterthought.

30. It might be different where the issue is the status of the government of a component part of the state, in which case the central authorities might be empowered by the constitution to resolve the issue. Cf. Luther v. Borden, supra note 24. 31. For instance, § 1(2) of the 1979 Constitution of the Federal Republic of Nigeria provided that the "Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the Government of Nigeria or any part thereof except in accordance with the provisions of this Constitution." Id. 32. McCormack, supra note 22, at 631. 33. Mahmud, supra note 1, at 134. 10 Arizona Journalof Internationaland Comparative Law [Vol 13, No. I

The foregoing response also appears sufficient to meet Mahmud's argument on the problem of ascertaining facts after a coup. In addition, however, Mahmud's argument assumes that a court which is called upon to determine the validity and legitimacy of a coup d'etat is only being asked to judge the efficacy of the usurpation. Efficacy is only but one of the tests employed by some of the courts to resolve the issue of legitimacy and it seems, therefore, that the problem of ascertaining facts and determining the efficacy of the usurpation presents itself only to the court minded to employ that test.34 Mahmud also argues that the courts should abdicate pronouncing on the validity/legitimacy of usurpation in order to save themselves the potential embarrassment that is likely to result when the usurpers decide to disregard any adverse pronouncement. The argument would seem to undermine an important aspect of his thesis, for he urges the judges to remain in office and carry out all other functions-including the function of checking the usurpers. 35 But in carrying out those other 'normal' functions, can the judges completely avoid situations challenging certain actions of the usurpers or are courts simply to rubber stamp all such actions on the principle that "the King does no wrong?" If the answer is in the affirmative, as Professor Mahmud's argument would seem to suggest, then how are the courts expected to perform their "important role of reviewing the functioning of a usurper regime."'36 If the judges are truly able to review the functioning of the usurper regime and thereby act as a check on it, they must feel able to render adverse judgments in deserving cases. Bui Mahmud's argument would seem to be saying that, even in such deserving cases, the judges should capitulate because of the fear that they might be disregarded or rebuked by the usurpers. While recognizing that an effective usurper regime might be able to disregard an adverse pronouncement on its validity/legitimacy, I am not persuaded that a court should be deterred by such fear.37 Moreover, a court should not be unnecessarily bogged down by the enforceability of its decrees. A court should

34. The doctrine of necessity is also frequently relied upon. But to some judges, none of the tests have any real meaning; these judges are unable to support the overthrow of a constitutional government for any reason. 35. Mahmud, supra note 1,at 129. 36. Id. Professor Mahmud even advocates an "active judicial oversight" in order "to protect the minimal basic rights of citizens against the arbitrary and repressive exercise of power by usurper regimes." Id. at 131. 37. Fieldsend, J. A. correctly, in my view, stated the position when he said: "It may be a vain hope that the judgment of a court will deter a usurper, or have the effect of restoring legality, but for a court to be deterred by fear of failure is merely to acquiesce in illegality." Madzimbamuto v. Lardner-Burke, 1968 (2) S.Afr.L.R. 284, 430 (1968). 19961 Judicial Response to Coup d'etat

make just and appropriate pronouncements and leave the problem of enforcement to the executive or, ultimately, to the people. In the words of Professor McCormack, "If a court begins to worry about the enforceability of its decrees, then it has already lost the foundations of legitimacy on which the judicial process rests in its entirety. The greatest protection of the Court's credibility and 38 thus its authoritative force, lies in the inevitability of its role." Professor Mahmud's most important justification for judicial abdication is perhaps his argument that legitimacy of a coup d'etat carries political/moral connotations while its validity is a "meta-legal" question because a "coup d'etat, by definition, destroys the constitutional order."39 He opines that no court has authority to question the legitimacy of a coup d'etat because that would amount to the court questioning the legitimacy of the state or the legal order the court serves.40 It may be true that a court lacks the authority to inquire into the legitimacy of the state or the legal order it serves but the critical question is whether the usurper regime itself can be equated with either the state or the legal order. The question must be answered in the negative, for a coup d'etat typically does not destroy a legal order and supplant it with a new one, neither does it give rise to the emergence of a new state. Professor Mahmud himself recognizes this fact when he states that the legitimacy of the usurper regime "is not completely autonomous of the pre-existing processes and institutions." 4 1 Yet he takes a position that denies one of the most important of those pre-existing processes and institutions-the judiciary-any authority to inquire into the legitimacy of the usurper regime. An approach that treats a particular regime as one and the same with the legal order tends to see the courts as mere instruments or agents of the executive branch, which they were not meant to be. But even assuming for a moment that we are ready to equate the usurper regime with the legal order, it is still not clear at what point a judge can be taken as serving the new order, and not the old, and therefore barred from questioning the legitimacy of the new order she serves. On validity, Professor Mahmud concedes that it is a "legal question subject to adjudication '42 but concludes that the validity of a coup d'etat is nonjusticiable because a "successful coup d'etat, by definition, destroys the constitutional

38. McCormack, supra note 22, at 633. See also Wayne McCormack, The Political Question Doctrine-Jurisprudentially,70 U. DE'. MERCY L. REV. 793, 797 (1993). 39. Mahmud, supra note 1, at 138. 40. Mahmud, supra note 1, at 135. 41. Mahmud, supra note 1, at 103. 42. Mahmud, supra note 1, at 135. 12 Arizona Journal of Internationaland Comparative Law [Vol. 13, No. I

order."4 3 This conclusion completely obscures and simply flies in the face of the very valid distinction he earlier drew between coups d'etat and revolutions. 44 Rather than maintain the distinction to the end, Mahmud found it convenient to collapse the two phenomena into one and treat their legal implications as the same, which is the same problem for which he severely criticized Kelsen's treatment of coups d'etat as being "out of step with the reality of coups in post colonial societies that do not aim at destruction of the entire legal order, but only at usurpation of political offices."45 Other difficulties exist with the 'option' of judicial abdication as a response to coups d'etat that would make it inappropriate in certain situations. First, imagine a situation where the usurper regime demands that all serving judges take a new oath of allegiance or fidelity to the regime. This has happened in a number of countries. 46 In such a situation, abdication would appear to be inappropriate since a decision one way or the other is demanded. The judge must then decide whether to subscribe to the new oath, which would amount to an explicit recognition of the authority of the regime to govern, or refuse to subscribe, which would almost surely cost her her job.47 There seems to be no room to duck the issue.

43. Mahmud, supra note 1, at 138. 44. More than once in his article, Mahmud asserts that a coup d'etat typically does not destroy the entire constitutional order but only the part of the constitution that deals with succession to political offices. For instance, he writes as follows:

A coup d'etat, on the other hand, typically aims only at capturing political power extra-constitutionally. Only that part of the Constitution which bears on the formation of political organs of the state is subverted. The functional framework of the state, the judicial branch, and the wider legal order are typically kept in place.

Mahmud, supra note 1, at 103 (footnotes omitted, emphasis added). See also Mahmud, supra note 1,at 129. 45. Mahmud, supra note 1, at 107. 46. For instance, the military regime in Pakistan in 1981 required all superior court judges to take a new oath of office pledging fidelity to the Provisional Constitutional Order promulgated by the regime, and the judges in Fiji in 1987 were also required to transfer their allegiance from the Queen and the 1970 Constitution to the new usurper regime. 47. For example, some of the judges in Pakistan and the Supreme Court judges in Fiji who refused to transfer their allegiance to the usurper regimes automatically lost their office. See Mahmud, supra note 1, at 81-82; Richard N. Kiwanuka, On Revolution and Legality in Fiji, 37 INT'L & COMp. L.Q. 961, 964 (1988). 19961 Judicial Response to Coup d'etat

The second difficulty with judicial abstention as a response to forceful usurpation of power arises in situations where the judicial oath taken by the judges includes a part requiring them to preserve and defend the Constitution. The judicial oath in Nigeria is typical. It is, in part, as follows:

I... do solemnly swear that.., as . . . a judge . . . I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law; . . . that I will preserve, protect and 48 defend the Constitution of the Federal Republic of Nigeria.

Should not a judge who subscribed to this or any similar oath feel qualms about straddling on the fence while watching the usurper regime assault and rape the Constitution the judge swore to preserve, protect and defend? The oath imposes a solemn, sacred and positive obligation on every serving judge to do no less than secure or guard the Constitution against attack and lend support to it at all times. It does not permit for passivity or fence-sitting, which is what judicial abdication entails. It is my view, therefore, that a judge who abstains from making a pronouncement on the overthrow of the Constitution, or who administers a law that subverts the Constitution, violates her oath, thereby profaning her faith. Thirdly, while judges might not have the monopoly on interpretive wisdom,49 their special position as those who by law possess the judicial power of the state seems to impose on them a special duty to provide leadership in determining what the law is at any point in time. Indeed, most people would normally look up to the courts for the last word on the meaning or status of any constitutional or statutory provision. On this expectation of society for the courts to concern themselves with the validity and legitimacy of the rule-making authorities, Eekelaar wrote as follows:

Indeed, in most societies the courts are the means, recognized by rulers and ruled alike, through which questions of validity and legitimacy are resolved. In practical terms, then, whether the 'ruled' can be taken to have accepted the validity of the rule-making authorities and, indeed,

48. Sixth Schedule to the Constitution of the Federal Republic of Nigeria, 1979 (emphasis added). Interestingly, even the judges appointed by successive military regimes in Nigeria also subscribed to this same oath. 49. See Mulhern, supra note 12, at 117. 14 Arizona Journal of htenzational and Comparative Law [VoL 13, No. I

whether there exists a 'juristic postulate' about this validity depends 0 upon whether this validity has been accepted by the courts.5

Some courts seem to have recognized the nature of this special responsibility. For instance, the Ugandan Supreme Court noted, in a case concerning the action of the Prime Minister in unilaterally abrogating the 1962 Constitution and replacing it with a new one, that "it must follow as the night follows the day, that it is an essential part of the duty of the judges of this court to satisfy themselves that the Constitution of Uganda is established according to ' law and that it is legally valid."' 1 Judicial abdication in the face of a coup d'etat would amount to a betrayal of the ruled who look up to the courts for guidance. There is a clear need for a definitive pronouncement by the courts in order to help minimize the uncertainties and speculations that would otherwise result. Perhaps the most important difficulty with judicial abstention as a response to coups d'etat lies with its consequence. As stated above, judicial abdication coupled with a willingness to administer the enactments of the usurper regime practically carries the same implications as the validation/legitimation 'option'. They both lend practical support to the unconstitutional usurpation even though the support in one case may be pronounced while it is implicit but unambiguous in the other. Accordingly, the judicial abdication 'option' is liable to be criticized for just about the same reasons as Mahmud characterized the validation/legitimation 'option' as the "worst choice. '5 2 Whatever the doctrinal or theoretical appeal the option of judicial abdication might have, the ultimate result is that it, like the validation/legitimation option, confers legitimacy on an event that is manifestly unlawful and would, in most countries, amount to 53 treason.

50. Eekelaar, supra note 8, at 29-30. For similar views, see also R.W.M. DIAS, JURISPRUDENCE 54-55 (5th ed. 1985). 51. Uganda Commissioner of Prisons, Ex parte Matovu 1966 E. Afr. L. R. 514, 530 (Uganda). Similarly, in Mokotso v. King Moshoeshoe I (1989) L.R.C. Const. 24, 139 (Lesotho) (involving a challenge to the validity of a military regime), the High Court of Lesotho observed that questions involving the legitimacy or validity of a military regime are anomalous but nonetheless concluded that it in itself may not warrant abstention by the judge. "But there can be no disclaimer of jurisdiction: there can no recusal. Decide he must." Id. 52. Mahmud, supra note 1, at 138-39. 53. See, e.g., de Smith, supra note 3, at 105 (arguing that when judges continue in office their "real or apparent acknowledgement of the authority of the new regime will clothe it with the valued prize of legitimacy."); E. Dumbutshena, How the Judiciary Should React to Violent Changes of Government and De Facto Regimes, 1989 19961 Judicial Response to Coup d'etat

In the best light, judicial abdication amounts to a condonation of a coup d'etat against a constitutional government. Whether viewed as giving active support to or condoning a coup, judicial abdication has the potential of encouraging political instability and undermining constitutional governance. Justice Fieldend's observation in Madzimbanmuto v. Lardner-Burke54 is very apposite here: "Nothing can encourage instability more than for any revolutionary movement to know that, if it succeeds in snatching power, it will be entitled ipso facto to the complete support of the pre-existing judiciary in the judicial '55 capacity."

C. Assessing the Options

Now to the true options of, on the one hand, accepting the fact of change brought about by the coup and accommodating oneself to it and, on the other, a refusal to accept the change represented by the coup. It is essentially a choice between remaining in office or quitting. There is much to say for and against

Conference On The Independence Of Judges And Lawyers (Caracas, Venezuela, Under the Auspices of the Uniteld Nations), Centre for the Independence of Judges and Lawyers Bulletin No. 23, 61, 62 (similarly concluding that the judges who remained in office after the Unilateral Declaration of Independence in Rhodesia made the illegal regime respectable). Dr. Lozada also argues that judges, jurists, and the "legal establishment" in the Third World countries have made "solid contribution" to the problem of military dictatorship by condoning or legitimizing coups d'etat through the amplification of the political question doctrine. Lozada, supra note 28, at 134. 54. Madzimbamuto v. Lardner-Burke, 2 S. Afr. L. R. 284, 430 (1968). 55. Professor Mahmud similarly criticizes the validation/legitimation option as follows: "By furnishing judicially pronounced legitimacy to extra-constitutional orders, the courts augment the effectiveness of usurpation and thus contribute to the fragility of constitutional governance. By failing to distinguish force from law, this option erodes the ideal of the rule of law and diminishes the prestige of the courts." Mahmud, supra note 1, at 120. "The experience of post-colonial societies shows that the validation/legitimation option encourages would-be-adventurers, undermines constitutional governance and the rule of law, contributes to political instability, and diminishes the power and prestige of the judiciary." Mahmud, supra note 1, at 139. It is for these reasons, among others, that he concludes that the validation/legitimation option is the "worst choice" for the judiciary. However, these criticisms apply with equal force to judicial abdication which Mahmud found to be the "only feasible option" since it too amounts to supporting or, at best, condoning an extra-constitutional of political power. 16 Arizona Journal of Internationaland Comparative Law [VoL 13, No. I

each of the options but the ultimate decision should be left to the individual judge 56 to make according to her conscience. Among the arguments made in favor of the judges remaining in office after a successful coup d'etat is the assertion that resignation by judges may add to instability and prejudice "their peaceful tasks of protecting the fabric of society in maintaining law and order."57 It is an overstatement of the judge's influence to state that remaining in office after a coup ensures in any significant way stability of the state and that only by so doing could the "peaceful tasks of protecting the fabric of society" be accomplished. The usurper regimes maintain order and stability usually by unleashing naked force upon the opposition; it is therefore doubtful if the judge's endurance in office helps in any significant way to ensure peace and stability. 58 In any event, it should be the responsibility of those who brought about the change to maintain law and order and, as argued above, the judges' continuance in office hampers the long-term political stability of the state 59 by undermining constitutional governance. It is further argued that continuance in office by the judges will prevent the usurpers from packing the courts with sympathetic and/or incompetent judges with the consequences of eliminating any continuing check on the conduct of the regime and the further consequence of eroding the confidence of the citizens in the

56. See Regina v. Ndhlovu, 4 S. Afr. L. R. 515, 532 (Rhodesian App. Div. 1968). 57. Regina v. Ndhlovu, 4 S.Afr. L. R. 515, 533 (Beadle, C.J.). This rationale was in fact used by Macdonald, A.J. for recognizing the Ian Smith regime in Rhodesia after the Unilateral Declaration of Independence as the legitimate regime. See Madzimbamuto v. Lardner-Burke, 2 S. Afr. L. R. 284, 410 (1968). 58. Actual experiences do not lend credence to this assumed influence of the judge. For instance, from 1967 Nigeria went through a bitter 30 month civil war barely one year after the first military takeover even though all the judges had continued in office. Conversely. in Fiji where all the Supreme Court judges resigned after a coup, heaven did not break loose as a result. 59. Justice Dendy Young of the Rhodesian Court of Appeal made the following statement on the occasion of his resignation on August 12, 1968:

There can be no suggestion that my resignation or that of any other judge must lead to a breakdown of law and order. On the contrary, for a judge appointed under the 1961 Constitution to enforce a law that subverts that Constitution is, in my judgment, to overthrow the law of the country. If order is to be maintained under some new system of law then it must be done by judges appointed by those responsible for the creation of the new system.

Quoted in R.S. Welsh, The Function of the Judiciaryin a Coup D'Etat, 87 S.AFR. L.J. 168, 182 (1970). 19961 Judicial Response to Coup d'etat

judicial process.60 This argument assumes two things: (1) that the usurper regime is unable on its own to remove uncooperative judges and replace them with sympathetic judges; and (2) that the judiciary is able to exercise all of its powers, particularly its power of review, and that the usurper regime will enforce 6 1 all the judgments emanating from the courts. Both assumptions are unwarranted and insupportable. First, the constitutional guarantees on the security of tenure of judges are usually abrogated by military regimes with the result that judges may be sacked without due process.62 Second, actual experiences show that military regimes, on coming to power, arrogate to themselves unfettered legislative competence and usually insulate not only their enactments but also all actions taken or purported to be taken under those enactments from judicial scrutiny. 63 The result is that in many

60. For instance, Beadle, C.J. of the Rhodesian Court of Appeal considered this factor determinative in his decision to remain in office after the Unilateral Declaration of Independence. Mahmud, supra note 1, at 129 n.536. 61. Professor Mahmud, for instance, concludes that "since the judiciary maintains some power to control the new regime, it is important that the judges remain in office." Id. at 130. 62. The military regime sacked a number of superior court judges in Pakistan in 1981 by not inviting them to take a new oath of allegiance to the regime. Id. at 81- 82. Likewise, the judiciary in Nigeria has been a target of purges by various military regimes. 63. The first enactment of Nigeria's military regime in 1966-Constitution (Suspension and Modification) Decree No. 1 of 1966-provided in sec. 3(1) as follows: "The Federal Military Government shall have powers to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever." This provision was re-enacted in almost identical terms in Decree No. 1 of 1984 and Decree No. 107 of 1993. The military regime that came to power in 1993 has supplemented the above provisions with Decree No. 12 of 1994 vesting "absolute powers" on the Federal Military Government to make laws for the preservation of peace and order in Nigeria. Additionally, the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984 (sec 1(2)) bars civil proceedings "for or on account of or in respect of any act, matter or thing done or purported to have been done under or pursuant to any decree or edict." Compare the provisions of the Provisional Constitutional Order, 1981 enacted by the military regime in Pakistan:

Notwithstanding any judgment of any court, including any judgment in respect of the powers of the courts relating to judicial review, any court, including the Supreme Court and a High Court, shall not . . . make an order relating to the validity or effect of any order ... made by the Chief 18 Arizona Journal of Internationaland Comparative Law f[Vol 13, No. I

cases the power of judicial review is effectively rendered impotent. Even in the few cases where the courts are able to assume jurisdiction, experience also shows that usurper regimes often pick and choose which orders to comply with, usually choosing to disregard those with which they disagree, particularly those pertaining 64 to enforcement of fundamental human rights. In sum, therefore, any talk by judges of remaining in office, which is motivated by a perceived need to maintain law and order and to act as a check on the usurper regime, is hollow and pretentious. This excuse veils the true intentions, whatever they might be, of the vast majority of judges who decide to continue in office after successful coups d'etat. On the other hand, the case for a refusal by the judges to accommodate themselves to a coup could be made on the strength of the judicial oath and the underlying duty to support constitutional governance. As stated above, a judicial oath to defend and uphold the constitution requires a judge to stand by that constitution no matter what. It would be a failure of judicial oath to give effect to anything that is not law when judged by the constitution. 65 In order to be able, in good conscience, to remain in office and serve under a regime that overthrows the constitution she has sworn to preserve, protect and defend, the judge must formally transfer her allegiance from the constitution to the usurper regime. Further, all patriotic and rational citizens have a civic responsibility to support a democratic culture and denounce arbitrariness in all manifestations. Judges and all other lawyers by virtue of their training should play a pivotal role

Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder.

64. The military regime in Nigeria refused to comply with an order of the Court of Appeal made on November 4, 1994 granting bail to a former presidential candidate standing trial for the treasonable felony of allegedly proclaiming himself President on the strength of the June 1993 election which he was generally presumed to have won but which was annulled by the military. The government later justified its refusal to comply with the order on the ground that the offense with which he was charged, being punishable by death, "is not bailable conditionally or unconditionally." See excerpts from report of interview granted the Voice of Nigeria radio by the Secretary to the Government, Agence France-Presse news agency, Nov. 13, 1994, available in LEXIS, Nexis Library, CURNWS File. See infra notes 83-87 and accompanying text for other cases of disregard of court orders by Nigeria's military regimes. 65. According to Fieldsend, J., "a court constituted on one constitutional basis cannot legally support the unconstitutional overthrow of the foundation upon which it is founded. A court created by a written constitution can have no independent existence apart from the constitution .... " Madzimbamuto's case, supra note 37, at 429-30, 432 (1968). 19961 Judicial Response to Coup d'etat

in the promotion of the rule of law and constitutional governance. 66 But judges who continue in office after coups d'etat, and as a result give a stamp of approval to the usurper regimes, end up encouraging the entrenchment of dictatorships and undermining constitutional rule. In this age when the wind of democratization is blowing across the entire world, judges should not ignore or be obstacles to the people's yearnings and aspirations for democratic rule. They should refuse to give any form of support to the few misguided and ambitious army officers and their civilian collaborators still minded to stifle the will of the people.

III. CONSTRAINTS OF THE NIGERIAN JUDICIARY UNDER MILITARY RULE

Whether by deliberate choice or implication, Nigerian judges generally seem to accommodate the usurpation of political power by the military through their continuing in office and administering the laws of the successive military regimes.67 By its nature, military rule presents problems for the judiciary, the kind of problems with which judges who serve under constitutional rule might not be familiar. The first problem is the dilemma discussed above, namely, the judges' response to the overthrow of constitutional rule. By resolving this dilemma in favor of continuing in office and thereby effectively becoming part of the usurper regimes, Nigerian judges face numerous other constraints, which perhaps replicate the experiences of other Third World countries beset by 68 unconstitutional rule. Some of these limitations include considerable curtailment of judicial powers arising first from the absolute legislative powers which the usurpers assume and, secondly, from the ouster of jurisdiction of the courts. In many instances, these limitations result in disobedience of court orders, abrogation of constitutional guarantees for human rights, and insecurity of tenure for judicial officers. The first enactments of the various military regimes in Nigeria have always been to repeal or suspend portions of the pre-existing constitution, assume absolute powers to legislate for any part of the country on any matter whatsoever,

66. But see Mahmud, supra note 1, at 129 (suggesting that "encouraging political action is not a part of the judicial function."). 67. In Nigeria's post independence history, there have been ten disclosed coup attempts, six of them successful. The military first assumed the reins of power in January 1966, barely 5 years after attainment of political independence and ever since it has been one military ruler after another except for the interregnum between 1979 and 1983 when democratic rule was temporarily restored. 68. See generally Aguda, supra note 13. 20 Arizona Journal of Internationaland Comparative Law [Vol. 13, No. I

and to oust the jurisdiction of the courts from reviewing any of their enactments or actions taken or purported to be taken thereunder. For instance, the Constitution (Suspension and Modification) Decree No. 1 of 1966 provided in the sections 1 and 6 as follows:

1.(1) The provisions of the Constitution of the Federation mentioned in Schedule 1 of this Decree are hereby suspended. 1.(2) Subject to this and any other Decree, the provisions of the Constitution of the Federation which are not suspended by sub-section (1) shall have eftct subject to the modification specified in Schedule 2 of this Decree.

6. No question as to the validity of this or any other Decree or of any Edict 69 shall be entertained by any court of law in Nigeria.

At least initially, these and other similar provisions tended to create a dilemma for the judges, particularly given the very fundamental principle of supremacy of the constitution which had always been part of Nigeria's jurisprudence. 70 The first opportunity the Supreme Court had to consider the import of the above provisions was in Lakanmi v. Attorney-General, Western State.7' At issue was the validity of certain decrees of the military government in

69. Schedule 3 of the Constitution (Suspension and Modification) Decree No. 1 of 1966 also specifically provided, with regard to the status of military decrees vis-a-vis the 1963 Constitution, as follows:

This Constitution shall have the force of law throughout Nigeria and if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this Constitution shall, to the extent of the inconsistency, be void. Provided that this Constitution shall not prevail over a decree, and nothing in this Constitution shall render any provision of a decree void to any extent whatsoever.

These provisions have been re-enacted in nearly identical terms in Decree No. I of 1984, Decree No. 107 of 1993, etc. In addition, Decree No. 13 of 1984 contained a general ouster provision insulating the enactments of the regime and actions taken under them from judicial scrutiny. See supra note 63. 70. For example, § 1 of both the 1963 and 1979 constitutions affirmed the supreme status of the constitution against which the validity of all laws and actions must be tested. Pursuant to these provisions, the courts reviewed Acts of the National Assembly ard declared some invalid for being inconsistent with the constitution. See, e.g., Doherty v. Balewa (1961) All Nig. L.R. 604; Attorney-General (Bendel State) v. Attorney-General of the Federation (1981) 20 Sup. Ct. 1. 71. Lakanmi v. Attorney-General, Western State (1971) 1 Uni. Ife L.R. 201. 19961 Judicial Response to Coup d'etat

which the applicants were specifically listed and made liable to forfeit certain assets which it was alleged had been acquired improperly. The Supreme Court held those decrees invalid for being inconsistent with the Constitution and further held that the powers of the military government to make laws were not absolute. The Court took the view that the coup that brought in the government was not a revolution and, therefore, did not overthrow the pre-existing legal order.2 The reaction of the military government to the judgment was swift and expected-it promulgated another dcr73 restating its right to unfettered and unlimited legislative competence. The decree in clear terms nullified the judgment and affirmed that the military coup of 1966 amounted to a revolution which "effectively abrogated the whole pre-existing legal order" except as preserved by Decree No. 1 of 1966. After this rebuke, the Supreme Court appears to have capitulated and accepted that the ruling military regime has absolute powers to make laws which are not open to challenge in any court of law. For instance, in Military Governor, Ondo State v. Adewumi 74 and-Labiyi v. Anretiola,75 the Supreme Court held that military decrees constitute the basic norm in Nigeria from which the validity of all other laws, including the Constitution, must be sourced. But it might be argued that the powers of the military governments to make laws for Nigeria are not absolute since no absolute powers can be conferred on any authority by law. Even powers couched in absolute terms are subject to 76 some legal limits, whether of procedure or reasonableness. To this end, courts may insist that the military regimes comply with their own procedures.77 And to adjudicate challenges which claim that a decree is invalid for failure to have been promulgated according to the ruling regime's standardized procedural process. The various decrees, which vested legislative powers on the military government, made the power of promulgating legislation

72. For a sharp critique of this case, see Abiola Ojo, The Searchfor a Grundnorm in Nigeria-The Lakanini Case, 20 INT. & CoMp. L. Q. 117 (1971). 73. The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970. 74. Military Governor, Ondo State v. Adewum (1988) 3 Nig. Weekly LR. (Pt.82) 280. 75. Labiyi v. Anretiola (1992) 8 Nig. Weekly L.R. (Pt.258) 139. For similar pronouncements, see Attorney-General of the Federation v. Sade (1993) 6 Nig. Weekly L.R. (Pt. 302) 692. 76. See HENRY WADE, ADMINISTRATIvE LAW 37 (5th ed.); Zango v. Military Governor of Kano State (1986) 2 Nig. Weekly L.R. (Pt. 22) 409, 414-15. 77. The organ for the most part was the Supreme Military Council, but later redesignated as the Armed Forced Ruling Council, the National Defense and Security Council, and since 1993, the Provisional Ruling Council. 22 Arizona Journal of hzternational and Comparative Law [VoL 13, No. I

exercisable by a particular organ of the regime.7 8 An enactment which issues forth from any one member or members of the regime other than the designated organ acting as a body to exercise the legislative powers of the regime is incompetent and subject to challenge. In the recent past, it has been known that certain enactments purportedly made by the law-making organ of the military regimes were, in fact, not submitted to it for deliberations before the regime promulgated those enactments. For instance, on June 23, 1993, before the meeting of the National Defence and Security Council, the law-making organ which was scheduled to meet later that day, the head of the military government acted alone to abrogate two decrees, 79 which had the effect of nullifying all court orders and other pending proceedings for the upcoming presidential election of June 12, 1993.80 More recently, it has been confirmed by no less a person than the Attorney-General of the Federation that eight decrees enacted by the Abacha regime on September 6, 1994 did not go through the proper procedure because they were never brought before the Provisional Ruling Council for deliberations. 8 1 It is submitted that those decrees were improperly made and are therefore open to challenge in a court of law. Furthermore, courts have other grounds for reviewing the decrees of the military regimes. When a regime acts outside of its self-imposed limits, those actions of the regime become subject to review. The regimes themselves

78. Decree No. 52 of 1992 and Decree No. 13 of 1993 which were some of the numerous decrees promulgated to regulate the long-drawn transition to civil democracy were aborted at long last by the annulment of the presidential election held on June 12, 1993. 79. A Justice of the Court of Appeal before whom one of such proceedings was pending, when informed in court of these actions, was reported to have observed that decrees could even be enacted from the President's bathroom. THE GUARDIAN (Nigeria), June 24, 1993, at 3. In the same vein, commentator Fred Agbaje described General Babangida (the former head of the military regime) as the "final norm" in contemporary jurisprudence of Nigeria. THE GUARDIAN, July 28, 1993, at 12. 80. See Justice Minister in Nigeria Disowns Laws, THE INDEPENDENT, Sept. 8, 1994, at 10. Among the decrees were those that proscribed 3 newspaper houses, dissolved the executive committees of 3 labor unions, raised detention period without charge from 6 weeks to 3 months, vested absolute legislative powers on the regime and ousted the jurisdiction of the courts from inquiring into the validity of any action of the military government 81. See e.g., the Ghaniuan case of Republic v. Director of Prisons, Ex Parte Salifa, (1968) 2 C & G 374 (Ghana), where the trial judge refused to give effect to a decree of the National Liberation Council on the grounds that the decree had neither been published in the Gazette nor given a number as required by law. Such strict construction is commendable particularly when the liberty of persons is at stake. 19961 Judicial Response to Coup d'etat

circumscribed their powers to make laws by decreeing that they could make laws for the peace, order and good government of Nigeria. To that end, section 3(1) of Decree No. 1 of 1966 provided: "The Federal Military Government shall have powers to make laws for the peace, order and good government of Nigeria or any 82 part thereof with respect to any matter whatsoever." Provisions of this type impose effective limits on the powers of the military government to legislate. For any law to be validly made, such law must be seen to enhance the "peace, order and good government of Nigeria." The courts have, therefore, not been completely emasculated since they can inquire into whether a particular decree meets the conditions set out above. This power of judicial control is significant because it could be employed by the courts to check legislative recklessness on the part of the military governments. To do otherwise-by yielding absolute legislative authority to the military government in the face of the self-imposed limits-will amount to the courts abdicating their adjudicatory responsibility. Another important factor that has contributed to the drastic curtailment of the courts' powers is the ouster from jurisdiction of the courts contained in numerous decrees. The decrees insulate not only the enactments of the regimes from judicial scrutiny but also actions taken or purported to have been taken under those enactments. 83 These provisions effectively abrogate the court's power of judicial review, which is the power that enables the courts to ensure that no legal functionary or authority acts beyond the limits of its powers nor that there be any abuse or misuse of power. Therefore, the ouster provisions disable the judiciary from discharging its most important responsibility of ensuring that the multifarious and stochastic encounters between the state and the citizens are fair, just and free from arbitrariness. According to a commentator, the summation of ''84 all these is that the Nigerian "judiciary has been disfunctionalised. Furthermore, another constraint on the performance of the Nigerian judiciary is the disturbingly high rate of disobedience of court orders by the various

82. Similar provisions were contained in the preamble to Decree No. 28 of 1970, Decrees No. 1 and 13 of 1984, and Decree No. 12 of 1994. 83. One decree that contains such a widely stated ouster clause is Decree No. 13 of 1984. See supra note 61. The Supreme Court while construing the clause particularly the phrase "purported to have been done," expressed the view that the clause could effectively insulate acts not properly within the scope of the decrees relied upon. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 Nig. Weekly L.R. (Pt. 135) 688, 724. See also Oio, supra note 13, at 107, for similar views. 84. OJo, supra note 13, at 107. See also Okere, JudicialActivism and Passivity in Interpreting the Nigerian Constitution, 34 INT. & COMp. L.Q. 788, 814 (1987) (concluding that the aggregate effect of most of the enactments under the military in Nigeria is to stifle judicial activism and restrict its maneuverability). 24 Arizona Journalof Internationaland ComparativeLaw [Vol. 13, No. I

military regimes. There is a plethora of instances of flagrant disrespect for court orders by the various levels of the military governments. 85 For our purposes, a few instances suffice to illustrate the disobedience's deleterious effects. Sometime in 1985, the Lagos State Government demanded that Emeka Ojukwu, the leader of the unsuccessful secessionist 'Biafran' regime, quit a property or face eviction. He immediately went to court to challenge the order but, while the proceedings were pending, the government sent armed men to evict the Ojukwu family from the property. The Court of Appeal subsequently ordered that Ojukwu be reinstated to the property but the government refused to comply 86 with the order. In 1989, a Gongola State High Court nullified the election of two local council chairmen and held that their opponents were duly elected. The Court of Appeal affirmed this decision. The Military Governor of Gongola State refused to swear in the duly elected chairmen as had been ordered by the courts and insisted that it was for the electoral commission, and not the courts, to decide who was duly elected. As a mark of solidarity with the courts and in protest against the Governor',; action, the Nigerian Bar Association embarked on a nationwide 87 boycott of courts. On July 13, 1990, a High Court restrained the Military Governor of Ogun State from installing one of the contestants to a traditional stool. A few hours after the decision, the Governor enacted an edict setting aside the court order. He proceeded afterwards to install the particular contestant, proclaiming that his action was to ensure public peace and safety. More recent incidents of non-compliance with court orders include the refusal of the military regime to release an opposition leader on bail as had been ordered by the courts.88 Another is the case of the closure by security forces of a daily newspaper-The Punch. In July 1994, the Federal High Court ordered the security forces to vacate the premises of the newspaper and to allow it to operate. The government did not heed the order and a month later in a committal application, the court ruled that the government was in contempt of its order and declared the continued closure illegal and unconstitutional. Thereafter, it took an

85. See, e.g., Executive Lawlessness In The Babangida Regime-A Report of the Civil Liberties Organization, Nigeria (March 1991). 86. Governor of Lagos State v. Ojukwu (1986) 1 Nig. Weekly L.R. (Pt. 18) 621, 636, 648-49, (the Supreme Court subsequently chided the Lagos State Government for its actions in the case). 87. It is rather ironic that the same Governor twice resorted to the same judiciary he had so ridiculed for reliefs; first, an order to restrain the Bar Association from continuing the boycott and, second, a claim for libel against a media organization for its report on the incident. 88. See supra note 64. 19961 JudicialResponse to Coup d'etat

additional eleven days before the security forces vacated the newspaper's premises. However, the newspaper's victory was to be very temporary for within two weeks the military regime passed a decree shutting the newspaper for an initial period of 8 9 six months, renewable at the will of the Inspector-General of Police. The foregoing instances typify a dangerous and unabating trend prompting the Chief Justice of Nigeria to warn recently that the resultant loss of respect for the courts could "quickly result to anarchy, chaos, and disruption of the society." 90 Disrespect for court orders by any body, whether government or individuals, portends grave consequences for the judiciary, the rule of law and the society at large. What is even more despicable is the role of lawyers in government service who participate in this systematic affront on the judiciary. They counsel, defend, and justify the government's refusal to comply with court orders. In one case, a state counsel, now a judge of the high court, while opposing the application for bail for a criminal defendant, stated in court that "if the court grants him bail, whether we like it or not, he will not be released." The presiding judge demanded an apology from the counsel which was tendered but, true to the counsel's threat, the defendant was re-arrested by security agents immediately after bail was granted. More recently, it was the Attorney-General of the Federation who called a press conference to announce that the government had the "right to ignore court judgments bordering on ouster clauses." 91 While I am not sure how much sympathy, if any, the judges truly deserve after having chosen to continue in office under dictatorships, it is nonetheless odious that lawyers with all their training in the rule of law could team up with military dictatorships to intimidate and torment the courts.

89. Decree No. 7 of 1994. Two other media organizations were shut the same day by separate decrees. 90. See Supreme Court President Warns Junta Against Ignoring Court Orders, Agence France Presse, Nov. 9, 1994, available in LEXIS, Nexis Library, CURNWS File. The Chief Justice remarked that the "military's failure to respect orders should not be seen as a slight on the judges who made the orders but as subversion." 91. Id. Defending the military government's frequent reliance on ouster clauses in decrees, the Justice Minister Michael Agbamuche stated at the same press conference that "if we did not stop courts from looking into certain cases, we would be in trouble." In July 1993, a government minister and former law professor threatened to sack vice-chancellors of Nigerian universities who failed to carry out his order to them to sack the over 8000 academic staff of the universities for embarking on a strike. The minister's threat was made after numerous court orders restraining the vice-chancellors from carrying out the government's sack order. In other words, the minister was directing the vice-chancellors to disregard court orders. 26 Arizona Journalof hzternational and Comparative Law [VoL 13, No. I

For their part, however, the judges themselves have not really done much to protest the, steady erosion of their authority besides some occasional deprecations. 92 The judges, preferably acting collectively, should consider taking some more drastic action such as mass resignation or suspension of work. Only one Nigerian judge is known to have resigned in protest against the flagrant defiance of his orders by the military government.9 3 The judge had stood on principle but that principle did not receive any support, not even from his colleagues on the Bench. Such occasions demand a concerted response from the judges for the defiance of a judge's order is an attack not only on the particular judge who made the order but on the entire judiciary. Unified protestation by a nation's judges is a not unheard of event. For instance, the Chief Justice of Zimbabwe once threatened to ask all judges in the country to stop work if an order made by a local judge for the release of a person detained by security men was not obeyed within 48 hours. After a sharp reaction by the country's press 94 and the Bar Association, the President had the order carried out immediately. The Nigerian judge is continually under pressure because of the insecurity of her tenure. This serves to even further undercut the judges stature in the eyes of the community. The military regimes usually do away with the constitutional guarantees on the tenure of judges. The result has been that the purges of the civil service, particularly those of 1975 and 1984, extended to unseat the

92. For some of these deprecations, see the Chief Justice's comments, supra note 88; Governor of Lagos State v. Ojukwu, supra note 84; Nigerian Army v. Mowarin (1992) 4 Nig. Weekly L.R. (Pt. 235) 345, 358. 93. For a detailed account of the incident leading up to the resignation, see AKINNOLA, SALUTE To COURAGE-THE STORY OF JUSTICE YAYA JINADU (1989). The judge made seven separate orders against the government for the reinstatement of certain public officers wrongfully dismissed from service. The government defied all the orders. Rather than showing solidarity with the judge, the Advising Judicial Committee under the chairmanship of Chief Justice Sowemimo asked the judge to apologize to the military government for his handling of the case. He chose instead to resign his office. 94. Ogbobine, The Gradual Decline of the Nigerian Judiciary, TE GUARDIAN (Nigeria) Sept. 30, 1992, at 13. The threat of mass resignation by the judges in India also worked to stop the government from appointing the Chief Justice of Bombay as Chief Justice of India. See Justice Bhagwati, The Pressures on and Obstacles to the Independence of the Judiciary, 1989 Conference On The Independence Of Judges And Lawyers Bulletin (No. 23) 14, 24. It is important, however, to observe that the two instances just cited probably ended on such positive notes because the two countries had democratic governments responsive to the public. There is no guarantee whatsoever that a strategy similar to that employed in Zimbabwe or India would work in a country with an absolute government. 1996] Judicial Response to Coup d'etat

judiciary. The military regime laid off many judges, including the Chief Justice of Nigeria and other state Chief Judges, without due process. Such exercises adversely affected the morale of the judges who were spared, but they did nothing in protest. A final source of concern for judges who serve under military dictatorships is the wholesale demoralization which arises from being impotent to stop, or even ameliorate the effects of, the methodical and large scale repression of human rights undertaken by most military regimes.95 Decree after decree abrogated wholly or watered down considerably the guarantees of human rights contained in the pre-existing constitution. In Nigeria, the repression takes different forms such as vesting arbitrary detention powers in a non-judicial authority, trial of civilians for offenses by military tribunals, harassment of. the press, ban on workers and students' organizations, extra-judicial killings, and retroactive penal legislation. One decree stated that it was an offense to publish any material "which brings or is calculated to bring" the Federal Military Government or a public officer to ridicule or disrepute and the truth underlying the published material was no defense.96 On July 22, 1993, the military government, on a scale unprecedented in Nigeria, closed down seven media houses at one fell swoop for expressing views or carrying news adjudged by the government to be against its 97 interest. Three young Nigerians were once tried, convicted and executed under a law 98 that was enacted only after their offense (drug trafficking) was committed.

95. See C. U. Umozurike, The Present State of Hwnan Rights in Africa, in NEW PERspECnvES AND CONCEPTIONS OFINTERNATIONAL LAw 114 (Ginther & Benedek eds., 1983); Lozada, supra note 28, at 124 (describing how dictatorships in the Third World organize an "informal and invisible 'Ministry of Fear' "torturing, imprisoning, and murdering those who dare to oppose the regimes"). 96. Public Officers (Protection Against False Accusation) Decree No. 4 of 1984. The decree was repealed by the Babangida regime in 1985 but not before two journalists were tried and convicted under it--Guardian Newspapers Ltd. V. Attorney- General of the Federation (unreported) Suit No. M/139/84. 97. On August 16, 1993, the government announced the promulgation of the Newspapers etc. (Proscription and Prohibition from Circulation) Decree No. 48 of 1993 with retroactive effect from July 22, 1993 proscribing four of the affected media houses. The ban was, however, lifted by the military regime that assumed power in November 1993 but the regime itself soon afterwards closed down three media houses. See supra note 87 and accompanying text. 98. The decree was the Special Tribunal (Miscellaneous Offenses) Decree No. 20 of 1984. Retroactivity of legislation, particularly that creating criminal offenses is a most violent negation of justice. According to Lon Fuller, "a retroactive law is truly a monstrosity. Law has to do with the governance of human conduct by rules. To speak 28 Arizona Journal of hternationaland Comparative Law [Vol. 13, No. I

Under the State Security (Detention of Persons) Decree No. 2 of 1984, hundreds of Nigerians have been detained upon the determination of a government official that they have been involved in acts prejudicial to national security or have contributed to the economic adversity of the Nigerian nation. The detention period is for three months in the first instance and renewable at the pleasure of the authorities. 99 The Decree precluded any judicial review of a government official's determination on whether a person has committed the acts proscribed by the Decree. The attitudes of judges in Nigeria and other Third World nations to cases concerning the repression of human rights vary considerably according to the individual judges. 100 Some judges seem to interpret the decrees as broadly as possible, while others adopt very strict construction of the decrees and are readily willing to set aside the charge against the person whose civil right has been violated once any requirement, no matter how minute, whether of procedure or substance, is not met. For instance, in Okudoh v. Commissioner of Police,'0 1 the presiding judge ruled that the detention of the applicant was unlawful because the detention order issued by the detaining authorities indicated that he was being held for "acts prejudicial to public order" rather than "acts prejudicial to national security" as stipulated in the enabling decree. The Ghanaian case of Republic v. Director of Prisons Ex parte Salifa"o2 featured both shades of judicial thinking-the activist spirits and the timorous

of a governing or directing conduct by rules that will be enacted tomorrow is to talk in blank prose." He equated retroactive legislation with the "brutal absurdity of commanding a man today to do something yesterday." LON F. FULLER, THE MORALHTY OFLAW, 53, 59 (2d Ed., 1969). However, retroactivity of legislation has been a common feature of Nigeria's military governments. For instance, during the first era of military rule (1966-1979), 295 of the 627 decrees enacted during the period had retroactive effect out of which 52 created criminal offenses. See Ben Nwabueze, Our March to Constitutional Democracy, August 1989 LAW & PRACTICE JOURNAL 8, 11. 99. The decree was once amended to reduce the detention period from 3 months to 6 weeks but in its most recent amendment-State Security (Detention of Persons) (Amendment) Decree No. 11 of 1994-the detention period was again raised to 3 months. 100. See Aguda, supra note 13, at 10-16. 101. Okudoh v. Commissioner of Police (unreported) Suit No. M/32/84, decision delivered on April 30, 1984. See also Olawepo v. State Security Services (unreported) (briefed in Itse Sagay, The Decline of the Judiciary as an Effective and Independent Third Arm of Government, 1991 THE LAWYER'S JOURNAL 82, 102) (where the trial judge declared invalid the detention of the applicants in the respondent's cell because the respondent was not by law authorized to have a cell and accordingly ordered their immediate release). 102. Republic v. Director of Prisons, Ex Parte Salifa, (1968) 2 C & G 374 (Ghana). 19961 Judicial Response to Coup d'etat

souls. The first trial judge, Antarkyi, J., ordered the release of the applicant from detention while refusing to give effect to the decree under which the applicant was detained because the decree had not been numbered and published in the Gazette as required by law. The applicant was re-arrested soon after his release and a second application for habeas corpus, which was brought before another judge, Grabbs, J., was dismissed because the judge upheld the validity of the same decree even though the decree had still not been published in the Gazette. 10 3 Nigeria's Court of Appeal obviously adopted the latter approach in Ching-yao v. Chief of Staff, Supreme Headquarters10 4 where it not only refused to assume jurisdiction in the applicants' case challenging their detention under Decree No. 2 of 1994 but concluded that Nigerian courts were totally helpless on the question of civil 0 5 liberties. When a judge comes to the conclusion that she is helpless in the face of a gruesome assault on human rights, one is left wondering if there is any further justification for continuing on the bench. As Justice Kayode Eso recognized,

[T]here is no justification for the existence of the judiciary except in its existence for the defense of the citizen to put his views across with all potency, for him to vent his feelings and his spleen in the public, for him to feel and breathe freedom around him .... 06

103. For a reaction to both decisions, see Gyandoh, Liberty and the Courts, in EsSAYS IN GHANAIAN LAW 86 (1976). 104. Ching-yao v. Chief of Staff, Supreme Headquarters (unreported) Suit No. CA1L125185, decision of the Court of Appeal delivered on April 1, 1985. 105. In the words of the court, "The combined effect of Decree No. 2 and Decree No. 13, 1984, is that on the question of civil liberties, the law courts of Nigeria must as of now blow muted trumpets." For comments on this and other cases with similar outcome, see Mike Ozekhome, Decrees, Ouster Clauses and Judicial Ineptitude, August 1989, 7 LAW PRACTICE JOURNAL 5; Agbakoba & Fagbohunlu, Nigeria's State Security (Detention of Persons) Decree no. 2 of 1984: Exploding the Myth of Judicial hpotence, 1 J. HUMAN RIGHTS L. & PRACTICE 45 (1991). 106. Quoted in Sagay, supra note 98, at 86. Only rarely have judges actually considered resignation as a response to repression of human rights by a government. In 1960, Sir Robert Tredgold resigned as Chief Justice of the now defunct Federation of Rhodesia and Nyasaland because the Southern Rhodesian Parliament had passed the Law and Order (Maintenance) Act which contained draconian measures meant to suppress the political aspirations of the Africans of Southern Rhodesia. See Dumbutshena, supra note 53, at 65-66. 30 Arizona Journal of hternationaland Comparative Law [Vol. 13, No. I

III. CONCLUSION

After the overthrow of a constitutional government by a coup d'etat, the judges face the hard choice of either remaining to serve on the bench, and thereby becoming part of the unconstitutional rule, or quitting with honor. It is an ethical dilemma for which the law cannot prescribe one solution. Every judge must make up her own mind. But in doing so, she should take into account the need of the nation for constitutional governance, political stability, and the protection of its individuals' rights. However, a coup d'etat by itself offends all of these ideals and no judge who remains behind her bench can pretend otherwise.